By Carolyn Short and Ed Gogek

Special for the Republic

Published April 12, 2011

Those who choose to use, grow or sell marijuana under Arizona's "medical" marijuana law might not care that they are violating federal law. On the other hand, Arizona Department of Health Services employees who implement these laws very well might care that they are violating federal law, but they are faced with a dilemma.

Arizona's "medical" marijuana law, which squeaked by with 50.1 percent of the vote last November, contains provisions that will force law-abiding citizens, people who have never touched an illegal drug in their lives, to violate federal drug laws. ADHS employees are in a lose/lose situation.

They can either obey state law and risk federal prosecution or obey federal law and risk losing their jobs.

Back in 2009, Deputy U.S. Attorney General David Ogden issued a memorandum stating it would not be a Justice Department priority to go after individuals using pot under state laws allowing for the "medical" use of marijuana. Many marijuana advocates believed this meant the Obama administration would take a hands-off approach in states with these laws.

In fact, Ogden merely said prosecuting the users is not a priority. However, prosecuting those who grow and sell marijuana is still a high priority. He further said that states can't authorize violations of federal law and can't provide protection from federal prosecution. Recent DEA raids on marijuana dispensaries in Montana, California and Colorado confirm that marijuana advocates misinterpreted the Ogden memorandum.

The Justice Department has been consistent on this issue. The Ogden memorandum recently was clarified by Melinda Haag, U.S. attorney for the Northern District of California, in response to a proposal by the Oakland City Council to license marijuana growers and dispensaries.

Haag said those who grow and sell marijuana would be prosecuted, even if they have licenses from the city of Oakland. And she said others "who facilitate the actions of the licensees, including property owners, landlords and financiers, should also know that their conduct violates federal law." That federal law is the Controlled Substances Act, which makes it illegal for anyone to use, possess, grow or dispense marijuana or to help anyone else commit any of those acts.

So, what about ADHS employees who hand out marijuana cards, inspect dispensaries, or perform other acts that will allow the use, possession, cultivation or distribution of marijuana? Are they violating federal law? Are they aiding and abetting violations of the Controlled Substances Act and therefore guilty, themselves? The answer is important because those who violate the Controlled Substances Act can be fined or be imprisoned for up to five years.

In Gonzales vs. Raich, the U.S. Supreme Court made clear that state "medical" marijuana laws are no defense against federal prosecution.

The Bush administration certainly believed state employees could be prosecuted for violating the Controlled Substances Act. In 2007, the administration warned New Mexico's governor that state officials could be prosecuted for implementing their "medical" marijuana law. For a legal analysis confirming the risk for state employees, see the memorandum posted at KeepAZDrugFree.com (click on "News").

This puts ADHS employees in a terrible bind. If they carry out their duties under state law, they're breaking federal law and could be fined or go to prison. But if they refuse to violate federal law, they're breaking state law and could lose their jobs.

The Ogden memorandum provides no safe harbor. At best, it suggests that, because of limited resources, the Obama administration might not prosecute ADHS employees. Think about that. So, it's OK to force ADHS employees to violate the law if the odds of prosecution are small? When did the rule of law become dependent upon resources to prosecute?

The point is that implementing state "medical" marijuana laws is a violation of federal law, whether or not it is prosecuted. ADHS employees should have the right to remain law-abiding citizens without running the risk of losing their jobs. Besides, what happens when this administration, or the next one, decides to prosecute these crimes?

Who is advising ADHS employees of their rights and responsibilities, and where are our elected leaders on this issue? It is not fair for ADHS employees to be impaled on the horns of this dilemma.

Carolyn Short was chairwoman of the anti-Proposition 203 campaign Keep AZ Drug Free.

Ed Gogek is a Prescott psychiatrist who specializes in addictions.